Canadian regulators allow P2P throttling

Massive Canadian ISP Bell Canada scored a big win today, as the country's telecoms regulator issued a long-awaited decision in which it concluded that Bell can continue to throttle P2P traffic at will. In a turn of events that would have seemed shocking a year ago, US regulators have now stepped in to stop P2P throttling while Canadian regulators have allowed it to continue. Have the two countries boarded different flights to the future? Possibly not; even as the Canadian Radio-television and Telecommunications Commission decided the throttling could continue, it also announced an entirely new docket that will take a top-to-bottom look at traffic management and network neutrality.

By regulatory standards, the Bell Canada case moved quickly. It began when the company started using deep packet inspection (DPI) to throttle P2P traffic on its retail network late in 2007. The throttling, which lasts from 4pm to 2am, was extended to Bell's wholesale customers in early 2008, which sparked the CRTC complaint.

Bell's wholesale Gateway Access Service is a government-mandated offering designed to promote ISP competition on Bell's last-mile links, and small ISPs often pledged not to throttle customers' P2P traffic. Indeed, after Bell instituted throttling for its own retail customers, the wholesale ISPs used this difference as a selling point. When Bell throttled their networks as well, the ISPs claimed that Bell was violating CRTC rules by interfering with the wholesale connections that it sold.

In today's decision, which considered only the question of whether Bell was allowed to throttle Gateway Access Service traffic, the CRTC found that congestion did exist on the network, small groups of P2P users were in fact causing a good deal of it, and Bell wasn't discriminating against anyone because it throttled its own retail service as well.

Small ISPs were also furious that Bell was deciding what to do with their traffic at a time when it was using extra bandwidth to offer premium services, included "Max" DSL, IPTV (which is not yet operational) and a new online video store. Surely, opening up a bandwidth-intensive online video store while stomping on P2P traffic (some of which carries legitimate video content from companies like Vuze) was unfair discrimination?

A big win for Bell

Again, the CRTC said no, apparently accepting Bell's claims that it had no such motives for throttling traffic. For instance, it reasoned that "Bell Canada submitted that any allegations of an ulterior motive connected with the launch of the Bell Video Store assumed that it had significant market power in the online content distribution market, which it does not."

"We are pleased that the Commission has agreed there is no need to intervene in the management of broadband networks," said Mirko Bibic, Bell's Senior Vice President, Regulatory and Government Affairs. "This is good news for Internet users across Canada who benefit from better managed networks."

The proceeding was also notable for the frank admissions from other large ISPs like Rogers—they admitted that they throttle traffic on a discriminatory basis, too. It also produced wild allegations from companies like Cisco that "even if more bandwidth were added to the network, P2P file-sharing applications are designed to use up that bandwidth." Such assertions allow the ISPs to claim that they must be able to throttle specific protocols simply to stay afloat—survival is at stake.

This is (to put it politely) highly debatable. Even Comcast, which was throttling only P2P uploads in the US, never touched downloads and it continued to operate without having every available drop of bandwidth soaked up by P2P's sponge. Users are always limited by the size of their pipes; Joe Canadian Six-Pack simply isn't capable of "using up" more bandwidth than his connection is allocated by the ISP.

This gets into the whole thorny issue of how ISPs typically underprovision their capacity and overpromise on speeds. It's usually the point at which the dreaded highway analogy is rolled out ("But if every car drove on the roads 24 hours a day..."). We'll leave that discussion for another day.

Time to reboot the debate

CRTC's new docket on "Internet traffic management practices" promises to give the entire issue a thorough public vetting. While throttling of the Gateway Access Service can continue, the new inquiry will take on the big questions surrounding traffic management and network neutrality, and the CRTC is promising to rule on which practices will be allowed and which will not. Possible solutions to traffic management challenges include bit caps, time-of-day usage pricing, peak period throttling, content caching, and upgraded capacity, though consumer resistance may make certain of these options unpalatable even if they remain legal.

The new inquiry will also feature what promises to be a fascinating and feisty public hearing on these questions next July 6 in Gatineau, Quebec; Canadian readers, start making travel plans now.

Canadian law professor Michael Geist, commenting on this morning's decision, said that it was important to look at the bigger picture. "In the span of 13 months, there has been a major CRTC case, a private member's bill on net neutrality, a rally on Parliament Hill, the emergence of BitTorrent as distribution tool for broadcast content, a more vocal business community supporting net neutrality, and a gradual shift of this issue into the political mainstream..." he wrote. "In other words, today's CRTC decision is not the final word on net neutrality in Canada, but rather the first word on it."